2007 (3) TMI 730 - SC - Indian Laws

Whether the High Court committed grave error in quashing the order of detention? Whether the right to make a representation against the order of detention is the most cherished and valuable right conferred upon a detenue under Article 22(5) of the Constitution of India and if there has been any infraction of such right the detenu is entitled to be released? Whether the initial order of detention issued under Section 3 (1) of the COFEPOSA Act can be held to be ab initio void on the ground that the authority issuing declaration under Section 9 of the COFEPOSA Act failed to intimate the detenu of his right to represent to the declaring authority?

Summary

Issues:
Challenge to detention order based on non-consideration of representation under Article 22(5) of the Constitution of India.

Analysis:

Issue 1: Challenge based on non-consideration of representation
The appeal before the Supreme Court challenged the judgment of the Delhi High Court, which quashed a detention order under the COFEPOSA Act due to the non-consideration of a representation by the Central Government. The High Court held that the failure to consider the representation within a reasonable time violated the detenu's rights under Article 22(5) of the Constitution. The Supreme Court emphasized the importance of the right to make a representation against a detention order, as guaranteed under Article 22(5). It clarified that the failure to consider the representation does not render the initial detention order void ab initio. The Court cited previous judgments to support the view that while the continued detention may be affected by the non-consideration of the representation, the original detention order remains valid. The Court concluded that the High Court erred in quashing the detention order solely based on the non-consideration of the representation, allowing the authorities to proceed under the SAFEMA.

Key Points:
- Right to make a representation under Article 22(5) is crucial.
- Non-consideration of representation does not invalidate the initial detention order.
- Previous judgments establish that the initial detention order remains valid despite the non-consideration of the representation.
- High Court's decision to quash the detention order was deemed erroneous.

This detailed analysis provides a comprehensive understanding of the legal issues involved in the judgment, focusing on the challenge related to the non-consideration of the detenu's representation under Article 22(5) of the Constitution of India.